Could a South Carolina municipality dismiss a criminal charge and still keep court costs?

Plain-English summary

A North Myrtle Beach city attorney asked whether a municipality could dismiss a charge yet keep court costs. The April 2001 informal opinion said criminal court costs generally required specific statutory authorization. The AG found no broad authority to retain costs after dismissal or acquittal.

The letter identified one narrow exception in the fraudulent-check law: a court could dismiss a prosecution on proof of restitution and payment of specified administrative costs before trial. The AG also said a city-created additional charge could conflict with the state constitution’s uniform judicial system, and costs after dismissal could raise due-process concerns.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Municipal courts and clerks

The AG said a dismissed case did not itself authorize retaining court costs. The letter distinguished the specific fraudulent-check procedure from a general local power to impose costs.

Defendants

The opinion described a statutory route requiring restitution and administrative-cost payment before dismissal of certain fraudulent-check cases. It did not treat ordinary dismissed charges the same way.

Common questions

Could a city keep costs whenever it dismissed a charge?
A: The AG said no general statute allowed that practice.

Was there any exception the AG identified?
A: Yes. The letter cited a fraudulent-check provision allowing dismissal after restitution and payment of specified administrative costs.

Could a city create its own extra court cost?
A: The opinion said that appeared to conflict with South Carolina’s uniform judicial system and could raise other legal concerns.

Background and statutory framework

The letter cited S.C.Code Ann. §34-11-70 for the fraudulent-check exception. It also discussed the state constitutional requirement for a uniform judicial system and due-process concerns about charging a person whose case was dismissed.

Citations and references

• S.C.Code Ann. §34-11-70: fraudulent-check dismissal procedure discussed by the AG.

Official title

Concerning "whether or not a municipality can dismiss a charge and keep the court cost.”

Requester

Roger P. Roy, Jr., Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-23-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01april-23-roy.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATTORNEY GENERAL

L.

April23,2001

Roger P. Roy, Jr., Esquire
North Myrtle Beach City Attorney
1015 Second Avenue South
North Myrtle Beach, South Carolina 29582

Re: Court Costs
Dear Mr. Roy:
You have requested from this Office " ... an opinion as to whether or not a municipality can dismiss a charge and keep the court cost." Generally, court costs in criminal cases can only be imposed when specifically authorized by statute. This general proposition holds true for convictions as well as acquittals. See A TTY. GEN. OP. (Dated April 16, 1979). See Also Melton v. State, 1So.2d920 (Ala.App.Ct. 1941). My research has revealed only one instance in which the South Carolina Code authorizes the assessment of court costs upon a dismissal of a criminal charge. In S.C. Code Ann. §34-1 l-70(c), our fraudulent check laws provide that: Any court, including magistrates, may dismiss any prosecution initiated pursuant to the provisions of this chapter on satisfactory proof of restitution and payment by the defendant of all administrative costs accruing not to exceed forty-one dollars submitted before the date set for trial after the issuance of a warrant. I know of no other statutory authority which would allow the imposition of court costs after a finding ofnotguiltyoradismissal of the underlying criminal charge. See (for example) S.C. Code Ann. §141-208 (" ... a person who is convicted of, or pleads guilty or nolo contendere to, or forfeits bond for an offense tried in municipal court must pay an amount equal to 100 percent of the fine imposed as an assessment ... "). Further, it does not appear that an individual municipality could impose additional costs on a criminal defendant without running afoul of the South Carolina Constitution' s requirement for a uniform judicial system. See A TTY. GEN. OP. (Dated June 19, 1984). See Also ATTY. GEN. OP. (Dated March 31, 1988) (Surcharge on all uniform traffic tickets by a particular municipality to defray training costs for police of doubtful constitutionality).

:J

REMBERT

c. DENNIS BUILDING

•.~~Pd ~/&/

•

P OST OFFICE Box 11549

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COLUMBIA , S.C. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

Mr. Roy
Page2
April 23, 2001

Additionally, imposing costs on a person against whom criminal charges have been dismissed may raise due process concerns pursuant to the Fifth and Fourteenth Amendments of the U.S. Constitution. Giaccio v. State of Pennsylvani~ 382 U.S. 399, 86 S.Ct. 518 (1966); City of Cuyahoga Falls v. Coup-Peterson, 707 N.E.2d 545 (Ohio App.Ct. 1997); Thomas v. State, 418 S.W.2d 792 (Ark. 1967) (assessing court costs against defendant after dismissal of indictment is a violation of due process of law). 1 This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General and not officially published in the manner of a formal opinion.

David K. Avant
Assistant Attorney General
DKA/an

1

Giaccio appears to leave room for the imposition of costs in cases such as S.C.Code Ann. §34-11-70 where a clear standard is established for the imposition of the costs.